November 17, 2017
This responds to your inquiry (17-129) asking whether it is ethically permissible 1) to hire a part-time court clerk who is the spouse of a police investigator in a special investigations unit for a nearby city; 2) to permit the court clerk to continue to serve on the local school board; and 3) to allow the clerk, on his/her own time and away from court premises, to be involved with local charitable organizations that raise funds for school programs and the food pantry. You state that “there is only a remote possibility” that the clerk’s police investigator spouse would be involved in any cases filed in your court.
The Committee has previously determined that it is ethically permissible for the spouse of a police investigator to serve as a full-time village court clerk. Here, the mere fact of the relationship does not necessarily give rise to an appearance of impropriety. However, in the unlikely event that a matter comes before your court in which the court clerk’s spouse appears or has been involved, you should insulate the court clerk from that matter. Such insulation will avoid the conveyance of any impression that the clerk is in a position to influence the judge.
We have previously advised that a law clerk who is a judge’s personal appointee is not ethically prohibited from seeking election to a public school board. We see no reason here to impose a greater restriction on a court clerk than on a judge’s personally
appointed law clerk. If governing rules or town law require the court clerk to obtain approval from the appointing authority to serve concurrently on the school board while working as town court clerk, you should direct him/her to obtain such approval.
The limitations on a judge’s extrajudicial activities do not automatically apply to all court employees, particularly a town court clerk who is not the judge’s personal appointee. In particular, the prohibition against fund-raising by judges or courts does not necessarily preclude all fund-raising by court employees, provided their activities are “sufficiently separate from the court” (Opinion 04-119). Thus, a court clerk may engage in fund-raising activities for charitable organizations as long as the fund-raising is not conducted on court property or during working hours and the clerk makes clear, if needed, that any fund-raising activities have nothing to do with the judge or the court.
Enclosed, for your convenience, are Opinions 10-116; 06-163; 06-89; 04-119; 01-108; 99-10; and 91-80 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court